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Clients to blame for lawyer's undoing?

By unknown | Nov 04, 2008 | COMMENTS [ 0 ]

The Labour Relations Act 66 of 1995 has provided for the establishment of dispute resolution agencies such as the Commission of Conciliation, Mediation and Arbitration (CCMA), Bargaining Councils and the Labour Court.

There are rules that govern the day-to-day operation of the Labour Court, the CCMA and the Bargaining Council, with which aggrieved employees and employers have to comply when seeking redress.

Among others, these rules provide for time limits within which an unfair dismissal or unfair labour practice dispute may be referred.

In challenging their dismissals, or defending their decisions to dismiss, employees and employers alike often engage the services of representatives.

The Labour Relations Act provides the right of representation to union officials, employer representatives and legal practitioners. In the event that a represented employee fails to comply with the prescribed time limits, such an employee must apply for condonation for his or her non-compliance.

In terms of the rules, a party is required to justify non-compliance by making a substantive application in writing.

In order to succeed with the application, such an application should satisfy the requirements set out in the rules.

The Appeal Court held in Saloojee vs Minister of Community Development that because an attorney was voluntarily appointed and chosen by the aggrieved party, there is therefore no reason why, in an application for condonation for failure to comply with the rules of court, an employee or employer should be absolved from the normal consequences attached to their representative's failure to comply with the rules of the court.

In Gaoshubelwe & Others vs Pie Man's Pantry, the Labour Court was prepared to accept what it considered to be exceptional circumstances in a case where the representative had failed to comply with the prescribed time frames.

In this matter, the union failed to refer a dismissal dispute to the Labour Court, after a review application was dismissed.

The employees were not informed about the outcome of the review application, although the attorney representing the union had informed the union. The employees only found out about the outcome three years later and then instructed another attorney to proceed with the dispute.

They did not have direct contact with the first attorney, because he was instructed by the union. As a result of this, they had to raise funds to acquire the services of the second attorney. The court accepted the employees' explanation for non-compliance with the rules as being reasonable in the circumstances.

The court accordingly held that the employees could not be blamed for their union official's negligence to refer the dismissal dispute to the Labour Court.

To determine the question whether a person who engages the services of a representative should be made to suffer the consequences of the representative's negligence is a factual enquiry. All the relevant factors will be taken into account to decide whether failure to comply with prescribed rules should be excused.

In order to succeed, the person who has been let down by his representative is required to fully explain by way of an affidavit, the circumstances which led to the non-observance of the rules by his representative.

- By Lavery Modise, a director, and Lebogang Kutumela, an associate, at Routledge Modise in association with Eversheds


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